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Neil Roberts

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  1. Neil Roberts

    U.S. Code Reference for Paying for Services

    Perhaps 31 U.S.C. 3324 (a)?
  2. Neil Roberts

    Data Rights under an SBIR contract

    DOD noncommercial and computer software SBIR data rights clause 252.227-7018 (k)(4) states: "The Contractor and higher tier subcontractors or suppliers shall not use their power to award contracts as economic leverage to obtain rights in technical data or computer software from their subcontractors or suppliers." Therefore, it appears to be overreaching to obtain ownership of such data. Generally, it seems to me it includes technical data or computer software conceived, developed, or first reduces to practice by, for, or with subcontractor, either alone or with others, in performance of the contract.
  3. I would flow 52.244-6 plus with respect to the contract between your company and your customer (a) all mandatory flowdown clauses included in such contract [including the laundry list, with the words "to the extent applicable" unless you are willing to take the risk, upon review of them, that they are not applicable] (b) all clauses included in such contract that should be flowed to satisfy your company's contractual obligation to its customer. See 52.244-6 (c)(2).
  4. Ultimately, it is your firm's business decision that should prevail. There are contractors that will accept cost type contracts with a low fee amount in order to help out a customer if it looks like there are future business opportunities that may be more in line with the firm's contract business model. Is the Agency or your firm willing to explore a cost plus incentive fee contract where it could be shown that the potential Agency dollarized share of savings might exceed their unwritten policy expectation? Other aspects to consider are whether this is a competitive situation.
  5. Neil Roberts

    Solicitation questions and answers

    I am not sure if my position is inconsistent with all the others. If the solicitation was brand name or equal, I would not tell any bidder whether their pre-bid selection of a particular "equal" brand name was acceptable or not. I believe that is a matter for evaluation of the bids.
  6. Neil Roberts

    Material Cost Adjustment

    FAR 25.9 provides for exemptions from import duties
  7. Neil Roberts

    Material Cost Adjustment

    I suggest you request that bidders offer include proposed terms and conditions and contract types that include pricing of any increase/decrease in tariffs and that bidders disclose the current tariff structure/amount included in the proposed price. Also, if you are a contracting officer and not a contractor, perhaps there is some process for tariffs to be excluded from the price and either waived or paid for directly by the Government and excluded from pricing.
  8. From a contractor standpoint, if this was a non-commercial procurement, I would expect a contract that included only one of the payment clauses being considered, but not both. See FAR 32.111. Also, it appears to me that an hourly rate payment condition in a contract could be either "contract type" you mention. However, if contractor personnel are stated to be, or in effect managed as if they are government employees, it would be a personal service contract. See FAR 2.101 definition of personal services contract and 37.104. I am just stating what my expectation is as a contractor reviewing terms that may be included in an Government solicitation/contract for this contemplated work.
  9. 'AJM, more facts are needed. For example, Who do you represent? What does the Government have to do with this? Are there contract provisions being offered? Does this deal involve government contracts or subcontracts or is this a commercial transaction? What is the language of the work-for-hire provisions you are concerned with? Without more facts, I would just say, have you tried negotiating?
  10. Neil Roberts

    Consideration in exchange NCE?

    Perhaps your company policy should state that absent excusable delay, it is also potentially an indication to the Government that per FAR 49.401, Contractor is actually or is about to be in default of its contract and may be terminated. Asking for an extension is not something a Contractor should take lightly. Aside from consideration, Contractor should be prepared with a catch back schedule and rationale for why this request is being made. Furthermore, failing to perform on time can affect the Contractor reputation and may adversely affect rating for future awards. I believe this type request should be approved internally by the same level company executive that was the highest level required approval of the initial contract. I would hope this level approver would want to know the Program Manager needs an extension.
  11. Neil Roberts

    MIL-STD-130 Assistance

    Joel, I don't know if the drawing is part of the contract but I am willing to assume it is. Drawing note 4 is clear about required identification language. I see note 4 language "Identify by MIL-STD-130..." as ambiguous as to it whether Contractor is required to comply with all of MIL STD-130, or only the identification requirements of MIL-STD-130 as it relates to Note 4 issues. To me, there is a risk that aside from the identification requirements in note 4, the Government may contend upon inspection or otherwise that additional requirements are applicable. The CO response to the PAR was ambiguous to me in saying "Contractor must review this standard" (MIL-STD 130). Should it be taken that the CO interpretation is that, for example, specifications, standards and handbooks called out as incorporated by reference in MIL-STD-130 are also to be complied with by Contractor? This is why I took the position that a contract MOD should be issued to incorporate whatever advice is given by the Government and that internally, the responsible Contractor function should be involved. Thanks for bringing this up Joel as I should have been clearer in my previous post.
  12. Neil Roberts

    MIL-STD-130 Assistance

    Paris, you say that MIL-STD-!30 is not included in your contract. I hope you have read all contract documents to verify that MIL-STD-130 is not called out anywhere, including being incorporated by reference in another MIL-STD and/or American Society of Mechanical Engineers (ASME) contract document such as perhaps ASME Y14.100 Engineering Drawing Practices. The Government apparently is instructing your company to comply with MIL-STD-130 (and the dated version is not clear). If I were the contract manager for your company, I would insist that the Government issue a contract Mod to incorporate whatever advice they give since from what you say, your company is not contractually obligated to comply with MIL-STD-130 or any deviation. As an aside, In my experience, MIL STD specs are not generally incorporated into a contract with reference to a version alpha/numeric revision because they are constantly evolving and in my previous experience, the general contract interpretation is to apply the latest version in the absence of an alpha letter call-out in the contract. I do not know what your function is, but if you are not the contract manager/responsible company Executive, I suggest you consult with them and let them make the decision.
  13. Neil Roberts

    MIL-STD-130 Assistance

    Paris, you have not answered one of Vern's questions: Does your contract with DLA reference MIL-STD-130 and if so, what version if any? Also, you have said you have been told or read several different things about how to mark this part? What are those several different things? Is one of them to mark the shipping document or packing slip instead of the part because of the size problem with the part marking?
  14. LenaNenz' post stated that it is a federal agency contract. I am caught off guard, Culham, as to why federal common law of government contracts may not apply. I certainly agree with you that more facts and research regarding the applicable agency controlling regulations would be helpful and may in fact lead to better solutions.
  15. My approach would be to file a claim alleging there was an “implied-in-fact contract” due to the parties’ conduct. I would reference the written contract and its terms and allege that the written contract terms were included in the implied in fact contract, and were intended to be included as indicated by the written contract terms that "details were to be worked out on a location-by-location basis with local staff" and that payments for work was made by the Government to the contractor for implied in fact contract work (explain details). I assume the written contract includes equitable adjustment language. I would give details about the relevant initial statement of work and the verbal changed work.
  16. Neil Roberts

    FAR 15.408 Deviation - re: 52.215-12

    Beantown, you stated that the 2018 NDAA "provides a class deviation." I see you are new. Class Deviations are creatures of Agencies, like DOD. I did not see any language in section 811 that states it is a "class deviation." Also, as expected, the DOD Class Deviation language about thresholds for the prime and subcontract is consistent with the language in 10 U.S.C. 2306a regarding prime and subcontract thresholds before and on or after June 30, 2018 and prime contractor requests to modify the threshold.
  17. It would be better if you indicate what data rights clauses are proposed. And, generally speaking, the Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data to be delivered under a contract by marking the deliverable data subject to applicable restrictions. The markings can be challenged by the Government. Can you provide the data item description for a Technical Progress Report? Not clear to me what is required. I am imagining just indicating progress towards milestones i.e., completed preliminary design review.
  18. Neil Roberts

    DAU Matrix

    Subparagraph (c)(2) requires a lot of thought about what the prime contract obligations are and you may not be given a copy of the prime for your perusal. A prime should include mandatory flowdown terms and conditions and other terms that are not so obvious to a subcontractor.
  19. Neil Roberts

    FAR 15.408 Deviation - re: 52.215-12

    With respect to requirements between prime contractor and subcontractor, some prime contractors wait for FAR changes to occur (or Agency Class Deviation requirements that are incorporated into its prime contract). To the extent they do that, my view is that it puts the prime contractor at risk of being accused it does not comply with "the law." I have heard it said that Contracting Officers are not authorized to apply procurement "laws" that are waiting for incorporation as FAR requirements.
  20. Neil Roberts

    FAR 15.408 Deviation - re: 52.215-12

    I suggest your company require subcontractor to comply with the subcontract cost or pricing data threshold per “Public Law” 10 U.S.C. 2306a subparagraph (C). See summary at https://www.law.cornell.edu/uscode/text/10/2306a
  21. Neil Roberts

    Reprocurement After T4C

    What about cost or pricing data and/or certifications or other matters that are required to be current at the time of award?
  22. My view. From your facts, it appears clear that the Government believes it is no longer contractually able to exercise the option, hence the talk about bilateral agreement. In my world, two parties can successfully find a contractual way to agree to the delivery of production quantities. You and/or the Government may have a sound basis to reach agreement on a different price. It is not clear if your company’s performance contributed to the delay in exercising the option. For example, if first article acceptability was delayed past the contract schedule date. This may provide an argument by the Government that it was not able to exercise the option until now. Also, not clear if there are any extenuating circumstances on the Government side such as funding and shutdowns that delayed the exercise of the option. Hopefully your company will also consider whether it still wants or is capable of performing production work. Finally, it is not clear from the facts whether or not additional un priced quantities may be ordered by the Government under an existing contract clause.
  23. Difficult to say what contract options there are without knowing all the contract terms and conditions. In general, it sounds like your client may sue the prime for breach of contract for 100% of the work unless the contract terms permits a unilateral change that reduces the work scope . From a business standpoint, it looks like under the given facts, your client has only completed 2/3 of the work. If that is the case, another option is to sign the task order that reduces the contract work, get paid for the completed 2/3 work and work with your prime to obtain more contract work in the future.
  24. Neil Roberts

    Bottoms-up pricing

    In my experience, both bottoms up and top down estimates are capable of being analyzed further before a bid is submitted. Neither one is necessarily "the gospel." Management may believe some challenges can be had and may for example, change some estimates to a lower amount based on information not necessarily known to the "bottoms up" people, but add a lesser sum back in to management reserve if possible. Some labor may be susceptible to a ambiguity as to the depth of work needed to comply with the customer statement of work.There also seemed to be many occasions in my experience where where the "customer" and/or advanced business marketing about customer funding gave rise to a range considered more winnable. Just saying.
  25. For some details about one company's view of the practical aspects of the Assad "TINA Sweep" policy memo see https://www.youtube.com/watch?v=xgAiP99x3Dg